INDURTHI NARASIMHARAO Vs. ALLADI VENKATESWARLU

JUDGEMENT

(1.) The short question that falls for determination in this revision is whether the plea of being an agriculturist set up by the petitioner herein is barred by the principle of constructive res judicata. It arises in the following circumstances.

(2.) A suit was instituted against the petitioner here in the year 1958 (O. S. No. 125 of 1958) on the file of the District Munsif, Warangal. It was decreed on 4-4-1960 for a sum of Rs. 4,750.00 in terms of a comprise memo filed by the parties. The first E. P. was filed in 1962 and was closed on 25-4-1962 recording part-satisfaction on payment of Rs. 600.00 The second E. P. No. 91/63 was filed on 24-6-1963 for the balance amount and prayer was included for the arrest of the judgment - debtor. petitioner herein. A notice was issued to the judgment - debtor who appeared on 24-71963 and filed an application for granting time to file a counter. In the counter he alleged that apart from the lands which were the subject matter of litigation he had no other property and as such the petition for arrest be dismissed. Thereafter, the judgment - debtor took four months time to pay the balance of the amount, but after a lapse of the said period instead of paying the amount he put forth a plea that he was an agriculturist and debtor within the meaning of section 2(6) of the Hyderabad Agricultural Debtors Relief Act (herein after called the act) and therefore, the E. P. be converted into an enquiry for scaling down the debt. It also prayed for the transfer of proceedings to the court competent to hear such cases. The respondent pleaded that the petitioner was precluded from raising the plea and that he was not a debtor within the meaning of the word used in the Act. The learned District Munsif relying on a decision in Shankar Ramkrishna v. Daga Tanaji Mali, AIR 1949 Bom 79 held that the plea set up by the petitioner was barred by constructive res judicata is directed against the said order.

(3.) The learned counsel for the petitioner concedes that this plea of being an agriculturists and a debtor within the meaning of the act has not been raised at the earlier stages. In the first E. P. which was closed on 25-4-1962 there was no reference to the judgment - debtor being an agriculturists. Even in the second E. P. it was only after the time prayed for payment was granted that the plea was set up. but his contention is that it being a right ground by statutory provision it could be raised at any stage. Further , his argument proceeds that the matter not being within the scope of S. 47 of the code of civil procedure the principle of constructive res judicata could not be extended to apply to such proceedings.